The term “donning and doffing” was established in 1938 and used to refer to putting on (donning) and taking off (doffing) work clothes, such as protective gear, equipment, and uniforms. Examples of professions that would require employees to don and doff include police officers, firefighters, and nurses.
Making the time spent donning and doffing compensable has become an issue as some professions require donning and doffing practices that meant exceeding the number of regular work hours. This has led to many employers who do not pay for time spent donning and doffing to cut costs on overtime, which has resulted in many donning and doffing-related lawsuits.
The FLSA Rules on Donning and Doffing
According to the FLSA, donning and doffing is compensable because “time spent in donning and doffing activities, as well as any walking and waiting time that occurs after the employee engages in his first principal activity and before he finishes his last principal activity, is part of the ‘continuous workday.’”
However, compensating employees for donning and doffing depends on the type of business and whether the donning and doffing qualifies as a preliminary or postliminary activity. Whether the donning and doffing is considered a vital part of the employee’s job also plays a role when determining if donning and doffing is compensable. In general, it is the employer’s discretion to pay the employee for time spent donning and doffing.
In 1947, Congress adopted the Portal-to-Portal Act, which established that employees should be compensated for “all time during which an employee is necessarily required to be on the employer’s premises, on duty, or at a prescribed workplace.”
More specifically, under the Portal-to-Portal Act, a compensable workday consists of all duties performed as a principal part of work, including all integral activities that are indispensable to regular duties. Therefore, to determine if the donning and doffing is compensable, it should first be determined whether the donning and doffing is an “integral and indispensable” part of the principal activity of the job.
For example, changing in and out of a uniform before and after work wouldn’t typically be considered compensable working time. An example of this would be an employee who could easily put on the required uniform and gear and take it off at home.
But what if the donning and doffing must be done onsite, such as a chemical facility? In a scenario where the employee needs to change into a hazmat suit because their job requires handling toxic materials, the donning and doffing of the suit qualifies as an integral and indispensable part of their job. This means the employer must compensate the employee for the time spent donning and doffing the protective gear. Unfortunately, many employers view the rules as open for interpretation, taking advantage of their ability to use their discretion to avoid paying overtime. Some employers may argue that the changing in and out of clothes or protective gear is not integral and not compensable when it is, and the employee should be paid properly. If you feel the time you spend donning and doffing should be compensable, contact Cilenti & Cooper, PLLC. Call us confidentially at 718-841-7474.